NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3715-16T3
MARIANNE MURPHY,
Plaintiff-Respondent,
v.
CHARLES F. SHAW, III, ESQ.,
Defendant-Appellant. ______________________________
Argued February 5, 2019 – Decided June 21, 2019
Before Judges Rothstadt, Gilson and Natali.
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-0869-13.
Diana C. Manning argued the cause for appellant (Bressler, Amery & Ross, PC, attorneys; Diana C. Manning and Benjamin James Di Lorenzo, on the briefs).
Joseph E. Collini argued the cause for respondent (Emolo & Collini, attorneys; John C. Emolo, on the brief).
PER CURIAM In this legal malpractice action, defendant Charles F. Shaw, III appeals
from the Law Division's June 10, 2016 order denying his motion for summary
judgment, the denial of his motions for directed verdicts, and its April 26, 2017
judgment memorializing a jury verdict that found defendant was negligent in his
representation of plaintiff Marianne Murphy. The jury's verdict was based upon
its finding that defendant breached his duty to plaintiff by failing to serve a Tort
Claims Notice1 so she could pursue malicious prosecution and spoliation of
evidence claims against the Township of Hazlet and one of its police officers
who responded to a road rage incident in which plaintiff was involved.
On appeal, defendant contends that as matter of law he owed no duty to
plaintiff to serve a Tort Claims Notice because her causes of action against the
municipality and its officer did not accrue, if ever, until after plaintiff terminated
defendant as her attorney. Moreover, even if he had been representing her at the
appropriate time, plaintiff could not prevail against the municipality or its
officers because the underlying prosecution against her did not terminate in her
1 In New Jersey, the Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3, governs claims against a public entity for money damages. "'[T]he Act establishes the procedures by which claims may be brought,' including a mandatory pre-suit notification of [the] claim." Rogers v. Cape May Cty. Office of the Pub. Def., 208 N.J. 414, 420 (2011) (first alteration in original) (quoting Beauchamp v. Amedio, 164 N.J. 111, 116 (2000)). A-3715-16T3 2 favor nor could she establish damages. Finally, he contends that the trial court
erred by admitting certain "net opinion" testimony at trial, failed to allow
defendant to challenge that testimony, and improperly instructed the jury that
plaintiff established as a matter of law the "favorable disposition" element of
her malicious prosecution claim.
We have considered defendant's contentions in light of the record and
applicable principles of law. We reverse and remand for entry of judgment in
defendant's favor because the trial court's decisions were based on a mistaken
application of the law as it related to whether and when plaintiff's causes of
action arose and to whether the underlying municipal court action was
terminated favorably for malicious prosecution purposes.
I.
Plaintiff's action against defendant arose from her unsuccessful claims
against the Hazlet Police Department (HPD) and one of its officers, which
related to her involvement in a June 2, 2010 road rage incident with Raeanne
Martin. We detailed the facts surrounding that incident and the parties' and their
witnesses' various accounts of what transpired that day in an earlier unpublished
opinion in which we reversed a jury's "no cause" verdict entered in Martin's
favor. See Murphy v. Martin, No. A-1762-15 (App. Div. Apr. 3, 2017) (slip op.
A-3715-16T3 3 at 17) ("Murphy II"). We need not set forth all of those facts here. Instead, we
recount the facts pertinent to plaintiff's claim against defendant.
According to plaintiff, the road rage incident culminated in Martin's
vehicle striking plaintiff's vehicle twice. Thereafter, plaintiff called 9-1-1.
Plaintiff alleged that she stayed on the line with the police dispatcher while
waiting for responding officers so that the dispatcher could hear Martin
screaming at her.
Two HPD officers responded to plaintiff's call. According to plaintiff,
one of the officers was greeted at the scene by Martin, who was evidently a
friend of the officer. Plaintiff described the officer as extremely abrasive, gruff,
and confrontational with her. She also alleged that the officer made sexually
suggestive comments and gestures towards her. Plaintiff told the officer that
she had been injured and needed medical assistance, which the officer refused
to obtain for her. Plaintiff testified that six to eight witnesses attempted to
communicate what they saw to the other HPD officer but were ignored. Rather,
the officers charged plaintiff with failure to produce her vehicle registration,
N.J.S.A. 39:3-29(b), and disorderly conduct for wielding a weapon, in violation
of the Township of Hazlet's Ordinance 959-54.
A-3715-16T3 4 The weapon was what Martin described as a "billy club" and plaintiff
contended was a souvenir trinket baseball bat that she obtained at a minor league
baseball game, which she used for protection after recently being attacked by
dogs during a run. Contrary to Martin's contention and the police report,
plaintiff denied that she ever got out of her car or confronted Martin with the bat
or otherwise.
The following day, plaintiff retained defendant. The parties disputed the
scope of defendant's representation. Plaintiff maintained that she hired him to
represent her in the municipal court action and in civil claims against Martin,
the two police officers, and Hazlet. Defendant contended that he was only
retained to represent plaintiff in the municipal court matter regarding the charges
brought against her, although he was aware from plaintiff that one officer "was
nasty and yell[ed]" at her at the scene of the incident.
Defendant recommended that plaintiff get a copy of the police report in
order to identify the other driver, Martin, so plaintiff could file a complaint
against Martin in the municipal court. Defendant explained that he did so
"[b]ecause [his] job [wa]s to have the[] two complaints dismissed against
[plaintiff]. And one of the best ways to do that is to charge the other driver[.]"
According to defendant, he also advised plaintiff that based on her description
A-3715-16T3 5 of pain she was suffering in her back, legs, and neck, she should report the
accident to her insurance company so it would pay her medical expenses.
According to plaintiff, defendant also encouraged her to pursue a claim against
the police officers but did not mention that she needed to file a Tort Claims
Notice in order to do so. Defendant did not dispute that he never discussed Tort
Claims Notices with plaintiff.
After meeting with plaintiff, defendant sent her a retainer letter that
confirmed he would be representing plaintiff in the municipal court matter
regarding the charges made against her. The letter also confirmed his advice to
her about obtaining the police report and filing charges against Martin.
Although not mentioned in his retainer letter, plaintiff believed defendant
was also representing her in connection with her claims against her insurance
carrier for the payment of her medical bills. She relied upon a statement made
by defendant in an August 2010 letter that if her insurance carrier did not pay
her benefits "we will simply sue them," and his advice to her to not speak to any
insurance company's investigators. According to plaintiff, her carrier was not
paying her bills because of the pending municipal court charges.
Defendant sent a demand for discovery to the Hazlet prosecutor. He later
followed up by requesting a copy of the tape recording of plaintiff's 9-1-1 call.
A-3715-16T3 6 Although defendant received some discovery, he did not receive the tape
recording.
Plaintiff obtained the police report and sent defendant notes about
inaccuracies in the report. Among other things, plaintiff's letter to defendant
stated that one officer made sexually suggestive hand motions and comments to
her at the scene of the accident. It also contained bullet points that said, "The
911 tape?" and "The video tape?" According to plaintiff, these were questions
addressed to defendant inquiring about whether he had obtained the recording
of her 9-1-1 call and the dash cam video from HPD.
Plaintiff went to the HPD on June 23, 2010 to file charges against Martin.
While there, she spoke to a detective who brought the bat the HPD officers said
they had confiscated from plaintiff's car. Plaintiff observed the bat was not her
souvenir bat, but a much larger bat, "two or three times larger. It was a regular
little league bat." She was "concerned . . . quite a bit" by this discrepancy.
Plaintiff notified defendant in writing about what occurred at the police
department. Plaintiff wrote that the detective asked her three times if the larger
bat belonged to her and that she stated it did not each time. Plaintiff also again
requested that defendant obtain the tape recording of the 9-1-1 call and the dash
cam video of the scene.
A-3715-16T3 7 Plaintiff's municipal court date was scheduled for September 23, 2010.
Defendant subsequently scheduled and then rescheduled three times a meeting
with plaintiff to prepare for trial before cancelling the last scheduled date, which
was the day before the trial. During a call with plaintiff, defendant informed her
that he had another trial in Superior Court scheduled for that week and would
not be able to represent her at her trial unless it was adjourned.
As it turned out, defendant's Superior Court matter was postponed and
when he contacted plaintiff to advise that he would be available, he was told that
she hired new counsel. Plaintiff terminated her relationship with defendant on
September 22, 2010, when she picked up her file and defendant refunded her
entire retainer payment, less a small amount for costs. The next day, defendant
signed a substitution of attorney withdrawing as counsel for plaintiff in favor of
another attorney.
However, when plaintiff appeared in municipal court, she did so without
counsel. The court assigned her a public defender and carried the matter to
March 24, 2011. On that date, both plaintiff and Martin appeared before the
municipal court. A copy of the 9-1-1 tape was given to plaintiff's attorney. At
that time, the parties agreed to dismiss all charges against plaintiff and Martin
and as found by the municipal court, the dismissals were voluntary. Notably,
A-3715-16T3 8 there was no finding that the charges against plaintiff were not based upon
probable cause.
After the charges against her were dismissed, plaintiff hired an attorney
to file an internal affairs complaint with the HPD and to bring a civil suit against
Martin, HPD, and one of the officers. Although the attorney filed a Tort Claims
Notice, and on November 12, 2012, filed an amended complaint, the trial court
dismissed plaintiff's complaint against HPD and the police officer because the
notice was not timely. 2
Plaintiff's claim against Martin proceeded to trial with a new attorney that
resulted in the court's September 14, 2015 no cause judgment. According to
plaintiff, she lost that trial because defendant never secured the 9-1-1 tape
recordings that could have been used at the trial against Martin. As noted earlier,
we vacated the no cause judgment and remanded for a new trial because of an
incorrect jury charge. See Murphy II, slip op. at 17.3
2 We have not been provided with the date that plaintiff's counsel filed the Tort Claims Notice nor have we been provided with a copy of the order dismissing the complaint against Hazlet and the police officers. Moreover, we find nothing to indicate that plaintiff ever filed an appeal from the dismissal. For our purposes we are assuming the notice was filed more than ninety days after March 11, 2011. 3 We are unaware of the disposition of the matter after our remand.
A-3715-16T3 9 Earlier, on February 9, 2013, plaintiff filed her complaint for legal
malpractice against defendant, alleging that he breached his contract and duty
owed to her by failing to file the Tort Claims Notice for claims of malicious
prosecution and spoliation of evidence against Hazlet and the police officer. In
response, defendant filed a Rule 4:6-2 motion to dismiss the complaint, or
alternatively, for summary judgment. The motion was granted, but we later
reversed in an unpublished opinion.4 See Murphy v. Shaw, No. A-0906-13
(App. Div. Dec. 30, 2014) ("Murphy I").
After our decision, defendant filed an answer denying plaintiff's claims.
During discovery, the trial court issued an order that postponed the scheduled
trial to June 27, 2016, and required that expert depositions and any additional
discovery be completed by June 24, 2016.
On May 12, 2016, defendant filed a motion for summary judgment and a
motion to preclude the testimony of plaintiff's expert, Thomas Dorn, Esq., as a
net opinion. Plaintiff served Dorn's report a few weeks earlier. In it, Dorn
4 As we explained in that opinion, although the trial court "correctly observed 'that . . . the inability to file the late notice of claim . . . is the proximate cause of [plaintiff's] damage,'" he incorrectly believed that had she done so, plaintiff could have obtained court approval to file a late notice, but failed to seek that relief. For that reason, he granted defendant's motion. Murphy I, slip op at 7- 8. A-3715-16T3 10 expressed his opinion that defendant was negligent for not having served a Tort
Claims Notice on Hazlet regarding plaintiff's claims of malicious prosecution
and spoliation of evidence. Dorn stated, among other things, that had defendant
served the notice, plaintiff would have succeeded on the merits of her malicious
prosecution and spoliation claims against Hazlet and its officers. On June 10,
2016, the trial court denied defendant's summary judgment motion, but partially
granted the motion to bar Dorn's testimony about his opinion as to whether
plaintiff would have succeeded in her claims.
On June 18, 2016, plaintiff served on defendant a supplemental report by
Dorn. The supplemental report added new opinions that related to plaintiff's
spoliation claims about the baseball bat the police removed from plaintiff's
vehicle. Upon receipt of the new report, and in anticipation of the upcoming
trial date, defendant filed a motion in limine seeking to bar Dorn from testifying
to its contents.
The trial did not proceed as scheduled and after multiple adjournments, it
was finally scheduled for January 17, 2017. Prior to the trial's commencement,
the trial court denied defendant's motion in limine regarding Dorn's
supplemental report. The matter proceeded to trial before a jury.
A-3715-16T3 11 During the trial, defendant moved for a directed verdict under Rule 4:37-
2 both at the close of plaintiff's case and at the close of all evidence. Those
motions were denied.
During the court's ensuing instructions to the jury regarding plaintiff's
malicious prosecution claim, the trial court read the elements of the cause of
action to the jury, adding additional explanations as it went along. When it
reached the third element, it stated the following:
Third, a plaintiff must prove that the criminal proceed[ing] terminated favorably to her in a manner not adverse to her. Well, in this case the undisputed evidence is that those . . . summonses were dismissed in the Hazlet Municipal Court after June 2, 2010. So, there[ is] not much dispute that that was a matter that was disposed of, [in] a matter not adverse to [plaintiff].
When defendant's attorney later objected to the court's instruction, the
court explained that when it spoke of the underlying action terminating
favorably for plaintiff, it was based upon its view that "favorably" equated with
the mutual dismissals in the underlying action not being "adverse" to plaintiff.
The jury then found that defendant had not breached his contract, but was
negligent and awarded plaintiff $55,000 in damages. Following the trial,
plaintiff moved for costs and attorney's fees, which the court granted in an order
entered on April 19, 2017. The final judgment was entered on April 26, 2017.
A-3715-16T3 12 II.
We begin our review by considering defendant's contention that the trial
court erred in denying his summary judgment motion and his later motio ns for
a directed verdict at both the end of plaintiff's case and the close of the
presentation of the evidence.
In his summary motion, defendant argued that he represented plaintiff
"only with regard to the [municipal court] summonses[.]" He also contended
that plaintiff could not prove her claim for legal malpractice because she could
not prove causation. In addition, he argued that plaintiff could not prove the
elements of a claim for malicious prosecution, including that the underlying
action did not end favorably for plaintiff. As to spoliation, defendant contended
that plaintiff only alleged that the 9-1-1 tape "was never found."
In an oral decision denying defendant's motion, the trial court observed
that in order for plaintiff to prevail against defendant, she had "to show that her
claims of spoliation and malicious prosecution would have been viable if a
[T]ort [C]laim[s] [N]otice would ha[ve] been filed." The court recognized that
plaintiff could not maintain an action for malicious prosecution where probable
cause for bringing the charges existed. It concluded there was a question of
material fact relating to whether the HPD officers had probable cause to bring
A-3715-16T3 13 charges against plaintiff. As to plaintiff's spoliation claim, it found that "the
issue . . . [was] not quite so clear." The court's concern related to whether Hazlet
was responsible for handling the 9-1-1 tape or another entity, such as the county,
was responsible for maintaining those tape recordings. 5
Defendant raised similar arguments at the end of plaintiff's case and at the
close of the evidence in support of his Rule 4:37-2(b) motions.6 At the end of
plaintiff's case, defendant argued for a dismissal based upon plaintiff's failure to
establish a claim for legal malpractice. According to defendant, the termination
of the municipal court action was not in plaintiff's favor and at the time her case
was dismissed, defendant was no longer her attorney. The court disagreed. It
asked, "how can you get a better resolution of a criminal case th[a]n to have the
charge dismissed?" It concluded that "there [was] no question about" the fact
that "the [municipal court] proceeding was terminated favorably." Moreover,
the trial court determined there was sufficient evidence presented for the jury to
find that there was no probable cause for plaintiff being charged by the HPD
5 Notably, there was no mention of the bat because plaintiff never asserted any allegations of spoliation relating to the bat in her pleadings. 6 A different judge than the summary judgment judge presided over the trial.
A-3715-16T3 14 police. As to spoliation, the trial court concluded that plaintiff did not need to
demonstrate intentional conduct regarding the concealment of the bat or the
9-1-1 tape.7
At the close of evidence, defendant asserted the cause of action of
malicious prosecution did not accrue while defendant represented plaintiff.
Plaintiff's counsel responded by stating that under the TCA, the action accrues
when the "tort[i]ous conduct happens" and if a plaintiff waited to file a notice
years after the incident giving rise to the claim, he would be barred. The trial
court denied the motion based on its view that there was no legal authority to
support defendant's contention about when a malicious prosecution cause of
action accrues.
Defendant then addressed the issue of spoliation and argued there was no
evidence that the bat or the tape were destroyed. In response, plaintiff's counsel
conceded that they did not know what happened to the bat removed from
plaintiff's vehicle, but they were certain that the bat that was tagged in evidence
was not plaintiff's bat. Also, plaintiff's counsel acknowledged that a 9-1-1 tape
was produced, but he contended it was "definitely not our tape," even though he
7 Evidently, as part of the motion at the close of evidence, the trial court permitted plaintiff to amend her complaint to conform to the proofs adduced at trial about the bat. A-3715-16T3 15 never listened to the tape. The trial court concluded the dispute was for the jury
to decide and it was up to plaintiff to prove that spoliation took place, as well as
the causation between the spoliation and defendant's failure to file a Tort Claims
Notice.
On appeal, defendant essentially contends that the evidence presented on
summary judgment and later at trial did not establish a prima facie claim for
legal malpractice. We agree.
A.
We review a court's grant of summary judgment de novo, applying the
same standard as the trial court. Conley v. Guerrero, 228 N.J. 339, 346 (2017).
Summary judgment must be granted "if the pleadings, depositions, answers to
interrogatories and admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact challenged and that the
moving party is entitled to a judgment or order as a matter of law." Templo
Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh, 224 N.J. 189,
199 (2016) (quoting R. 4:46-2(c)).
We review a trial court's grant of a motion for involuntary dismissal of a
negligence claim pursuant to Rule 4:37-2(b) by applying the same standard as
the trial court. ADS Assocs. Grp., Inc. v. Oritani Sav. Bank, 219 N.J. 496, 510
A-3715-16T3 16 (2014). "A motion for involuntary dismissal is premised 'on the ground that
upon the facts and upon the law the plaintiff has shown no right to relief.'" Ibid.
(quoting R. 4:37-2(b)). "The 'motion shall be denied if the evidence, together
with the legitimate inferences therefrom, could sustain a judgment in plaintiff's
favor.'" Ibid. (quoting R. 4:37-2(b)). "If the court, accepting as true all the
evidence which supports the position of the party defending against the motion
and according him the benefit of all inferences which can reasonably and
legitimately be deduced therefrom, finds that reasonable minds could differ ,
then the motion must be denied." Id. at 510-11 (quotations omitted). "The point
is that the judicial function here is quite a mechanical one. The . . . court is not
concerned with the worth, nature or extent (beyond a scintilla) of the evidence,
but only with its existence, viewed most favorably to the party opposing the
motion." Dolson v. Anastasia, 55 N.J. 2, 5-6 (1969).
B.
In determining whether defendant was entitled to judgment as a matter of
law, we first consider the elements of the claim plaintiff was required to prove.
See Sommers v. McKinney, 287 N.J. Super. 1, 10 (App. Div. 1996). To establish
a prima facie case of legal malpractice, a plaintiff must prove "(1) the existence
of an attorney-client relationship creating a duty of care by the defendant
A-3715-16T3 17 attorney, (2) the breach of that duty by the defendant, and (3) proximate
causation of the damages claimed by the plaintiff." Granata v. Broderick, 446
N.J. Super. 449, 469 (App. Div. 2016) (quoting McGrogan v. Till, 167 N.J. 414,
425 (2001)). To prove proximate causation, a plaintiff must establish that a
defendant-attorney's breach of duty was a substantial factor in bringing about
plaintiff's damages. Conklin v. Hannoch Weisman, 145 N.J. 395, 422 (1996).
In Conklin, the Court explained that
[t]he simplest understanding of cause in fact in attorney malpractice cases arises from the case-within-a-case concept. For example, if a lawyer misses a statute of limitations and a complaint is dismissed for that reason, a plaintiff must still establish that had the action been timely filed it would have resulted in a favorable recovery.
[Id. at 417.]
Turning to the first element, we look to the contents of defendant's
agreement to provide services that plaintiff accepted to define their relationship
at its inception. 8 RPC 1.2(c) expressly permits an attorney, with the consent of
8 In his brief to us, defendant states that he did not specifically raise this argument before the trial court. Our review of the record is different. We understand the issue to have been raised, but even if it was not expressly argued, we agree with defendant's contention that we are free to consider it because the
A-3715-16T3 18 the client following consultation, to limit the scope of representation. Lerner v.
Laufer, 359 N.J. Super. 201, 217 (App. Div. 2003). Recognizing that "what
constitutes a reasonable degree of care is not to be considered in a vacuum but
with reference to the type of service the attorney undertakes to perform," we
cautioned that where "the service is limited by consent, . . . the degree of care is
framed by the agreed service." Ibid. (quoting Ziegelheim v. Apollo, 128 N.J.
250, 260 (1992)).
Defendant's retainer letter expressly referred only to the matter of "State
v. Murphy" that was pending in municipal court. It discussed not only the action
filed against plaintiff, but also mentioned the municipal court charges that
defendant advised plaintiff to pursue against Martin. The retainer it requested
was also limited to services performed while representing plaintiff "in Municipal
Court." It made no mention of defendant having anything to do with claims
against the municipality or its police officers. Under these circumstances,
plaintiff's claims arising from defendant's failure to do anything related to claims
issues before the trial court dealt with whether plaintiff established a claim for legal malpractice based upon the accrual of her cause of action for malicious prosecution and spoliation while defendant represented her. Docteroff v. Barra Corp. of Am., Inc., 282 N.J. Super. 230, 237 (App. Div. 1995). A-3715-16T3 19 against either could not be sustained because he simply did not represent her in
those matters.
Turning to the second element, and assuming, as plaintiff argues, her
continuing communications with defendant expanded the scope of his
responsibilities, plaintiff needed to establish that during the undisputed period
of defendant's retention -- June 3, 2010 through September 23, 2010 -- defendant
had a duty to file a Tort Claims Notice to preserve plaintiff's claim against Hazlet
and the police officers. According to plaintiff, in order to do so, defendant had
an obligation to file a Tort Claims Notice within ninety days of the June 2010
incident. Her contention is incorrect as a matter of law.
Under the TCA, a notice must be served "not later than the 90th day after
accrual of the cause of action." N.J.S.A. 59:8-8. The TCA does not define the
date a cause of action accrues. Rather, the comment to N.J.S.A. 59:8-1 states
"[i]t is intended that the term accrual of a cause of action shall be defined in
accordance with existing law in the private sector." Margolis & Novack, Claims
Against Public Entities, 1972 Task Force Comment to N.J.S.A. 59:8-1 (2008).
Consequently, the resolution of when a cause of action accrues is entirely left to
judicial interpretation and administration. Rosenau v. City of New Brunswick,
51 N.J. 130, 137 (1968) (citing Fernandi v. Strully, 35 N.J. 434, 449 (1961)).
A-3715-16T3 20 Case law has established that a cause of action accrues when the combination of
facts and events exists that authorizes one party to maintain an action against
another. Marini v. Wanaque, 37 N.J. Super. 32, 38 (App. Div. 1955); Band's
Refuse Removal, Inc. v. Fair Lawn, 62 N.J. Super. 522, 540 (App. Div. 1960).
Generally, in personal injury actions, "[t]he date of accrual of [a] cause of
action [is] the date of the accident in which [a plaintiff] knew [he or] she was
injured and that a public entity was responsible." Beauchamp, 164 N.J. at 119.
Additionally,
[a] person need not have or even contemplate filing a claim in order to trigger the notice provision. It is more properly denominated as a notice of injury or loss. Although the full extent of an injury or loss may not be known, N.J.S.A. 59:8-4, the notice is triggered by the occurrence of injury and must be filed in order for a complaint to be lodged against the public entity.
[Id. at 121.]
We consider therefore plaintiff's claims for malicious prosecution and
spoliation of evidence to determine whether plaintiff's causes of action, if any,
accrued during defendant's representation of her.
A-3715-16T3 21 C.
In a claim for malicious prosecution, a plaintiff has the burden to establish
"(1) that the criminal action was instituted by the defendant against the plaintiff,
(2) that it was actuated by malice, (3) that there was an absence of probable
cause for the proceeding, and (4) that it was terminated favorably to the
plaintiff." Helmy v. City of Jersey City, 178 N.J. 183, 190 (2003); see also
Brunson v. Affinity Fed. Credit Union, 199 N.J. 381, 393-94 (2009). In the
context of a claim for malicious prosecution based upon the pursuit of disorderly
conduct charges against a plaintiff, there may be an additional element. Where
the plaintiff was not subject to "arrest[], [being] held on bail, fingerprinted,
photographed or suffered any of the liberty deprivations or intrusions inherently
attendant upon the initiation of a criminal action," the subject of a malicious
prosecution must also prove a special grievance. Klesh v. Coddington, 295 N.J.
Super. 1, 4 (App. Div. 1996). "It is beyond doubt that '[t]he plaintiff must
establish each element[ and that, u]pon failure to prove any one, the cause must
fail.'" Brunson, 199 N.J. at 394 (alterations in original) (quoting Lind v. Schmid,
67 N.J. 255, 262 (1975)).
Here, in the context of defendant's summary judgment motion and his
motions for a directed verdict, there was no dispute as to the first element, but
A-3715-16T3 22 there remained mixed questions of law and fact as to the second and third
elements. "While . . . the existence of probable cause [and actuated malice are]
ordinarily . . . question[s] of law, nevertheless, [they] become[] a mixed
question of law and fact when the underlying facts, as here, are in dispute[,]"
and therefore require submission to the jury for resolution. Jobes v. Evangelista,
369 N.J. Super. 384, 398 (App. Div. 2004) (citing Helmy, 178 N.J. at 191; Liptak
v. Rite Aid Inc., 289 N.J. Super. 199, 215 (App. Div. 1996)). We conclude that
there existed a sufficient dispute of the material facts and evidence in the record
to warrant the denial of summary judgment and a directed verdict to the extent
defendant's motions relied upon the second and third elements. We reach a
different conclusion as to the fourth element.
A cause of action for malicious prosecution does not accrue until there has
been "a favorable termination of the criminal proceeding." Muller Fuel Oil Co.
v. Ins. Co. of N. Am., 95 N.J. Super. 564, 577 (App. Div. 1967) (addressing the
accrual for "statute of limitations [purposes and finding that it] does not begin
until such termination"). "The judge must decide, after considering what
occurred before the criminal court, whether the nature of such termination
was . . . favorable to plaintiff. If he determines that it was not favorable , the
malicious prosecution action should be dismissed; if it was favorable, that action
A-3715-16T3 23 should continue." Williams v. Page, 160 N.J. Super. 354, 362, 364 (App. Div.
1978) (finding that, where a criminal proceeding was dismissed by reason of the
defendant's insanity, the underlying criminal action "was not terminated
favorably to [defendant] or not adverse to him").
Here, assuming plaintiff secured a "favorable termination" of her
municipal court matter and established the other elements of her claim, it was
undisputed that the charges against her were not dismissed until March 2011,
months after she terminated defendant's services as her attorney. A Tort Claims
Notice should have been filed no later than ninety days after the dismissal. It
was also undisputed by plaintiff that during that period, she was represented by
a new attorney.
Defendant therefore never had an obligation to file a notice for a malicious
prosecution claim during the period he represented plaintiff because her claim
had not yet ripened. Unlike a personal injury plaintiff who is injured on the day
of the incident, a party who is prosecuted has no claim until when and if the
prosecution is terminated in his or her favor. In this case, a dismissal did not
take place while defendant was plaintiff's attorney.
Moreover, we conclude that plaintiff's claim for malicious prosecution
also never ripened because although the underlying municipal court action was
A-3715-16T3 24 terminated, there was no evidence that the termination was "favorable."
Plaintiff's claim for malicious prosecution fails as a matter of law because the
municipal case was terminated by settlement rather than by a merits-based ruling
in plaintiff's favor. See Lind, 67 N.J. at 262 (citing Prosser, Law of Torts, § 119
at 835 (4th ed. 1971)). "If the charge is withdrawn or the prosecution abandoned
pursuant to an agreement of compromise with the accused, the termination is
viewed as indecisive and insufficient to support the cause of action[, and] the
accused may not later contend that the proceedings terminated in [her] favor."
Mondrow v. Selwyn, 172 N.J. Super. 379, 384-85 (App. Div. 1980) (citation
omitted).
Because plaintiff could never establish a bona fide claim for malicious
prosecution against the municipality or its police officers, defendant was entitled
to judgment as a matter of law dismissing her claim against him to the extent
she relied on his failure to issue a Tort Claims Notice for that claim.
D.
Next, we consider plaintiff's claim for spoliation of evidence and reach a
similar conclusion. "Spoliation typically refers to the destruction or
concealment of evidence by one party to impede the ability of another party to
litigate a case." Jerista v. Murray, 185 N.J. 175, 201 (2005). It involves "the
A-3715-16T3 25 hiding or destroying of litigation evidence," and may be remedied "to make
whole, as nearly as possible, the litigant whose cause of action has been impaired
by the absence of crucial evidence; to punish the wrongdoer; and to deter others
from such conduct." Rosenblit v. Zimmerman, 166 N.J. 391, 401 (2001).
"[S]poliation of evidence can result in a separate tort action for fraudulent
concealment, discovery sanctions, or an adverse trial inference against the party
that caused the loss of evidence." Jerista, 185 N.J. at 201-02 (citing Rosenblit,
166 N.J. at 401-06).
The duty to preserve evidence arises when (1) there is pending or likely
litigation and knowledge of this fact by the alleged spoliating party, (2) the
evidence is relevant to litigation, and (3) the opposing party would be prejudiced
by the destruction or disposal of the evidence. Aetna Life and Cas. Co. v. Imet
Mason Contractors, 309 N.J. Super. 358, 366 (App. Div. 1998) (quoting Hirsch
v. General Motors Corp., 266 N.J. Super. 222, 250-51 (Law Div. 1993)).
To establish a separate tort action, the plaintiff must prove the elements
of a claim for fraudulent concealment of evidence. Rosenblit, 166 N.J. at 406-
07. Those elements include:
(1) That defendant in the fraudulent concealment action had a legal obligation to disclose evidence in connection with an existing or pending litigation;
A-3715-16T3 26 (2) That the evidence was material to the litigation;
(3) That plaintiff could not reasonably have obtained access to the evidence from another source;
(4) That defendant intentionally withheld, altered or destroyed the evidence with purpose to disrupt the litigation;
(5) That plaintiff was damaged in the underlying action by having to rely on an evidential record that did not contain the evidence defendant concealed.
[Ibid.]
Plaintiff argued and Dorn opined in his supplemental report that
defendant's failure to have "filed a timely notice of claim against . . . Hazlet and
the Officers . . . would have been sufficient to preserve any claims that
[plaintiff] had against the defendants if she later found out that the (911) tapes
or the 'bat' were concealed or lost" (emphasis added). They also contended that
because of the divergence of plaintiff's and Martin's accounts of what happened,
the tapes and the bat were "crucial evidence" to corroborate the plaintiff's
version of how the accident occurred. Further, they not only asserted that not
having the tapes and the bat were crucial to the municipal court case, but also to
plaintiff's later civil action against Martin.
We find these contentions to be without merit. First, because the
municipal court action resolved through compromise and the charges against
A-3715-16T3 27 plaintiff were dismissed, no cause of action arose for spoliation during the period
that defendant represented plaintiff. Second, the dismissal of the charges against
her obviated any potential claim for spoliation because there was no longer any
need or requirement for Hazlet or its officers to produce the 9-1-1 tapes or the
bat in the municipal court action. Had there been a trial, and the items were not
produced, plaintiff would at the very least have a claim for spoliation. Without
the matter proceeding to trial, defendant had no reason to believe that evidence
would not ultimately be produced.
Similarly, as to the civil action against Martin, there was no evidence that
plaintiff tried to secure the bat or tape from Hazlet or the officers. If she had,
and her efforts failed, she would then have had a claim for spoliation and could
seek the court's assistance and pursue the remedies available to her during the
trial, or she could pursue her claim after the trial for fraudulent concealment,
assuming she served a timely Tort Claims Notice if appropriate.
On that note, we observe that her civil claim against Martin was remanded
for a new trial and if the matter has not been otherwise resolved, plaintiff will
have her opportunity to pursue her spoliation claims when and if the evidence
she seeks is not produced and she can establish the other elements of the claim.
What is clear to us is that in this case, plaintiff failed to establish the other
A-3715-16T3 28 elements of the claim on summary judgment and during trial. Plaintiff did not
come forward with any evidence that either the tape's or the bat's concealment
was the result of the HPD "intentionally with[holding], alter[ing] or destroy[ing]
the evidence with purpose to disrupt the litigation." Rosenblit, 166 N.J. at 407.
Similarly, other than plaintiff's bald assertion, there is no proof that she
would have prevailed at trial against Martin had the bat or tapes been produced.
A "[p]laintiff['s] unsupported allegation that the absence of . . . physical
evidence may have caused [the jury to return a no cause verdict] is pure
speculation." Marinelli v. Mitts & Merrill, 303 N.J. Super. 61, 75 (App. Div.
1997). Without proof of each element, plaintiff could not have succeeded on
her claim even if a notice had been served.
Because we conclude that summary judgment or a directed verdict should
have been entered in defendant's favor, we need not reach any of his remaining
arguments. The Law Division's final judgment is reversed and the matter is
remanded for entry of an order vacating the judgment and entering a directed
verdict in favor of defendant.
Reversed and remanded for further proceedings consistent with our
opinion. We do not retain jurisdiction.
A-3715-16T3 29